1. In the village of Mathura Mangalam there is a Vaishnava temple erected in honour of a devotee, Embar. The appellants are members of the Tenkalai sect interested in maintaining the worship at this temple and in defending the privileges of the temple.
2. The respondents are members of the Vadakalai sect, who have erected a Vaishnava temple on a private site in the Sanadi (temple) street in honour of a devotee, Vedhanta Desikar, which has been lately thrown open for regular-public worship.
3. It appears that in 1849 the Vadakalais endeavoured to open a temple for public worship according to the tenets of their sect on a site in the Sanadi street adjoining that which they now occupy.
4. The Tenkalais thereupon instituted a suit--Original Suit 13 of 1850--in the Court of the Sadr Arain, praying that the Vadakalais might be compelled to remove their idols and prohibited from celebrating festivals and erecting any temple in the village for the worship of their idols. The Vadakalais, in their answer to the suit, relied (inter alia) on the general right of owners of land to erect on their own property places of public worship and to set up therein such idols as they thought fit. . In a previous suit between the same sects, it appears the pundit had delivered an opinion that the public worship of idols of devotees such as the spiritual teachers of the respective sects was not recognized by Hindu Law, and that that law did not permit persons to assemble together to celebrate worship to such idols, but that, where it was customary to do so, such idols might be used in private worship. Belying on this opinion of the pundit, the Sadr Amin granted the order and injunctions prayed for.
5. On appeal the Judge held that, supposing the worship of which the Tenkalais complained was prejudicial to the interests of the institution they supported, the question being one of conscience, no cause of action accrued to the Tenkalais, and that it was competent to the Vadakalais to adopt the worship of what idols they pleased in pagodas erected on their own lands. On these grounds the Judge reversed so much of the decree as ordered the removal of the idols and prohibited the Vadakalais from erecting pagodas and celebrating public worship therein; but inasmuch as he con-sidered the conduct of processions in honour of the Vadakalai idols was an innovation, did not form an essential part of the worship, and might be productive of public disturbance, he ordered that no procession should take place in honour of the Vadakalai idols or be accompanied by them in any public street or road of any village or in any public thoroughfare whatever. This order was not asked for by the plaint and was manifestly in excess of the jurisdiction of the Judge. The case came before the Sadr Court (S. A. 55 of 1853). The pundits of the Court, on being consulted as to the Hindu Law on the subject, replied that it would be contrary to custom to allow a pagoda to be erected by the Vadakalai Vaishnavas even on their own ground if such an erection was against the feelings generally of the people of the village.'
6. The pundits quoted in support of their opinion a passage in the preamble of the Mitakshara which declares that ' no cases prejudicial to the feelings of the inhabitants of a town or village shall be entertained by a king.'
7. Referring to a previous decision in Appeal 1 of 1839, in which it had been held that the instituting of public worship by the Tenkalais within the precincts of a Vadakalai temple was an invasion of right, and observing that, inasmuch as the conducting of processions was a material part of the worship at the temple and the conducting of processions by the Vadakalais within the range of the processions of the Tenkalais would be an invasion of the right of the Tenkalais, the Sadr Court, in advertence to the opinion delivered by the pundits, decreed that the defendants, the Vadakalais, should be prohibited from erecting a temple or instituting public worship on the spot of ground objected to by the plaintiff's and which lay within the range of their temple, that is to say, within the usual range of the processions conducted in connection with the temple worship.
8. The Sadr Court, in Appeal 141 of 1857 (M.S.D. 1857, p. 219), declared that the right to pass in procession through the public streets of a town in such a way as the Magistrate might not object to as dangerous to the public safety, was a right inherent in every subject of the state; forthwith the Vadakalais disobeyed the decree of 1853 and conducted public worship in buildings erected on the spot to which the prohibition expressly referred. Consequently, they were again sued and a decree obtained against them directing  the removal of their temple and idols, and this decree was approved by the Sadr Court in 1862.
9. The Vadakalais then removed their idols and erected a building for the purpose of worship on the site now occupied by them; but, with the exception of occasional processions, they made no arrangements for the celebration of public worship till 1879, when provision was made for the continuous conduct of such worship throughout the year. This led to the institution of the suit now before the Court in appeal in which the appellants claim the removal of the temple and an injunction restraining the respondents from erecting a temple in any part of the village and from conducting processions in connection with any such temple.
10. At the hearing, the appellants relied on the decrees already obtained which they contended estopped the respondents from denying their claim.
11. The respondents pleaded (inter alia) the liberty of public worship enjoyed by every subject in British India and the right to use public thoroughfares; they maintained that the decrees did not prohibit the erection of a temple on the spot now occupied by their temple, and that, if the decrees would otherwise be binding on them, the state of society in the village was not to such an extent altered that it would be unjust to enforce them.
12. The Munsif, having ascertained that in the array of plaintiffs and defendants were persons who had been parties to the prior proceedings, held that the decrees then obtained were binding on the respondents and precluded them from relying on any general right. The Munsif also came to the conclusion, and his reasons are ingenious, that the right claimed by the appellants was not a more serious invasion of general right than is recognized in other cases, as for instance the protection of a right of private market or the repression of a nuisance.
13. He observed that the erection of a temple of a rival sect would seriously interfere with the receipt of income from voluntary contribution by the older temple, that the meeting of the idols carried in procession on the same festivals could hardly be avoided and would entail considerable expense for expiatory services, and that the recital of repugnant mantrams would seriously inconvenience and pain the worshippers at the older temple.
14. He, however, considered that, inasmuch as the previous decrees had not defined the limits of the Tenkalai processions, the rights claimed by the appellants should be restricted to places in which it was proved they had been exclusively enjoyed, and, finding on the evidence that the exclusive right had been enjoyed only in respect of the Sanadi street, he granted the injunctions prayed, but limited their operation to that street.
15. Both parties appealed to the Judge, the appellants contending that their right extended to the whole village, the respondents repeating the pleas they had relied on in answer to the suit.
16. The Judge, observing that the street in which the temples were situated was undoubtedly a public street, and that the site on which the respondents had created their temple was their private property, held, in advertence to a recent decision of this Court in Seshayyangar v. Seshayyangar I.L.R. 2 Mad. 143 see also Muthialu Chetti v. Bapun Sahib I.L.R. 2 Mad. 140 that :the respondents were entitled, in virtue of their general right to liberty of worship, to take the action of which the appellants complained and that they were not precluded from asserting this right by the previous decrees.
17. These decrees he considered he was justified in construing strictly, and, so construed, they were decisive only of the right to erect a temple on the spot of ground on which the temple of the respondents then stood and not of their right to erect a temple on the spot on which it now stands.
18. On second appeal, the appellants insist that the respondents are estopped by the proceedings in the suits before mentioned from contending they are entitled to erect a temple within the customary range of the processions conducted in connection with their temple.
19. It will be seen that the final decree in the suit (Original Suit 13 of 1850) simply interdicts the then defendants from erecting a temple or instituting, public worship on the spot of ground objected to by the plaintiffs to which is added a declaration indicating, no doubt, the rule of decision that the spot lay within the range of their temple. This decree then cannot preclude the Vada-kalais from building a temple or conducting public worship at any other spot, and the contention of the appellants must rest on this ground that the respondents are estopped by the decision of some matter directly and substantially in issue in the former suit. In other words, the respondents rely on what is known as estoppel by verdict and not on estoppel by judgment.
20. It is contended on their behalf that the matter in issue and determined in the former suit was this--that the respondents are not entitled to erect a temple or to assemble for public worship within the customary ambit of the Tenkalai processions.
21. It must be admitted that this issue was raised and decided in the former suit, but it was raised not as a question of fact, but as a question of law.
22. It was not asserted that by long usage whence an origin of title might be presumed, the Tenkalais had, in this particular instance, acquired a right in derogation of the rights of the public to exclude all persons from conducting religious processions or assembling for public worship within a certain area, if such a right could be recognized; but it was pleaded, as a matter of law that the adherents of a religious sect are not at liberty to erect a pagoda nor assemble for public worship in a place in which such worship has not theretofore: been practised, if the feeling of the inhabitants generally was opposed to the innovation.
23. The Sadr Court accepted the opinion of the pundits and applied what they were informed was the law.
24. It is not denied that the view of the pundits is opposed to what has been declared to be the law of India under British Administration, and that persons of whatever sect are at liberty to erect buildings and therein conduct public worship on their own land, provided they neither invade the rights of property enjoyed by their neighbours, nor cause a public nuisance, and that they are also entitled to conduct religious processions through public streets so that they do not interfere with the ordinary use of such streets by the public and subject to such directions as the Magistrates may lawfully give to prevent obstructions of the thoroughfare or breaches of the public peace.
25. The contention of the appellants then substantially is this--that because a question of law was directly or substantially in issue and was erroneously decided by a competent tribunal, that decision is conclusive as between the parties to the proceedings in which it was pronounced, and its propriety cannot be questioned in any subsequent proceedings between the same parties in which the question may again arise. Courts are bound to ascertain and apply the law and not to make law, and it is a suggestion repugnant to reason and to justice that, because a Court has erred in ascertaining the law, it is bound to repeat its error whenever the same question of law may arise between the same parties.
26. Although considerations of convenience have established the rule that the final decree of a competent Court is decisive of the rights it declares or refuses notwithstanding it may have proceeded on an erroneous view of the law, and although the same considerations have established the rule that the determination by a competent Court of questions of fact directly and substantially in issue are binding on the parties, these considerations do not suggest the expediency of compelling the Courts to refuse to give effect to what they have ascertained to be the law. The term estoppel by verdict indicates that such estoppels are confined to questions of fact, and no authority has been cited to warrant the application of the rule to the determination of an issue of law. The District Judge has, in our judgment, properly appreciated the effect of the proceedings in the former suit.
27. We, therefore, disallow the appeal and affirm his decree with costs.